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Leading the Disengaged

Leading the Disengaged

The Great Recession appears to have taken more than just jobs out of the economy. It has taken the spirit out of many workers


In June of 2013, a very disturbing poll was released by  Workers were divided into 3 categories: engaged, disengaged and actively disengaged.


According to the poll, 70-percent of American workers are “disengaged.”  A full 20-percent describe themselves as “actively disengaged.” Only 30-percent reported feeling “engaged.”


One could read this otherwise: only a 30% approval rating for leadership. While you cannot make everyone happy--indeed you should not try-- a 30% approval rating is dangerously low.


The non-engaged may leave you.  Employees are beginning to take the “at-will” right very seriously and job hop when they are not happy.


The actively non-engaged may sabotage you. Sadly, some of my clients have experienced this. 


Of course, employees also may sue you. People sue people, even if the name of the defendant is an organization  


If you want your organization to be productive, your employees cannot be a cabal of  zombies injured and disillusioned by the recent economic contractions. You need them to have passion and commitment.


Gallup’s conclusion:  leaders are responsible for the lack of engagement.  The report states:  “Organizations should coach managers to take an active role in building engagement plans with their employees, hold managers accountable, track their progress and ensure they continually focus on emotionally engaging their employees.”


But how can we as leaders achieve this goal?  How do we inspire emotional connection when many employees feel exploited by the new normal?


There was a song in the 70s by Spiral Staircase that included the lyrics “I love you more today than yesterday, but not as much as tomorrow. “ The theme song for the corporate world today could be:  “I expect more of you today than yesterday but not as much as tomorrow.”


Pulling back in terms of our demands is not an option.  The competition, domestic and foreign, has never been more fierce.


So we can’t retreat. We must continue to move forward  but we need more employees to go forward with us as engaged participants.


How do we turn disengaged, often hurt, employees into engaged participants?  How do we make some progress with the actively non-engaged, too?


On October 14, 2013, Lead with Giants will have a tweet cast in which we hopefully can share our experiences and ideas with each other so that we can lead engaged employees who in turn will help keep us engaged.



Follow me on Twitter at: Jonathan__HR__Law



















Retaliation: Corrective Action Without Admission

I am pleased to share with you my latest blog from SHRM's We Know Next:

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations.


Wage and Hour Implications of the Government Shutdown

I am pleased to post a guest blog I wrote for the Philadelphia Business Journal regarding the wage and hour implications of the government shut down:



The Legal Intelligencer Animal Law & Rights Issue


Affinity Group Danger Zones

I am pleased to post my recent article for SHRM's HRMagazine: 

SHRM » Publications » HR Magazine » Editorial Content » 2013 » September 2013 » Affinity Group Danger Zones

Legal Trends 
Affinity Group Danger Zones 
Vol. 58 No. 9 
Structure affinity groups so they are lawful. 

9/1/2013  By Jonathan A. Segal  

Smart organizations want to increase employee engagement and inclusion. One way to do that is through affinity groups.

What are affinity groups? They are groups of employees who have a common interest or characteristic. Sometimes the commonality is based on a factor that is not protected under equal employment opportunity (EEO) laws, such as the employees’ position. Usually, however, affinity groups are built around EEO-protected characteristics, such as race, gender and sexual orientation, and are supported financially by the organization.

There are obvious benefits to having affinity groups. They can increase morale, retention and innovation, as well as business, because of greater inclusion of diverse perspectives.

In some organizations, an affinity group may be seen as the antidote to marginalization of certain groups of employees. Affinity group meetings provide a place to experience business and social inclusion for those who are or feel marginalized.

Yet, these groups, if not structured properly, can have divisive and exclusionary effects. Moreover, there are legal risks that need to be navigated. Just because the goal of the affinity group is laudable does not mean that the group is lawful.

The following four hypotheticals highlight some of the legal and business risks of affinity groups, with recommendations on how to manage them.

Affinity Group For White Men

Employer ABC has affinity groups for women; people of color; and lesbian, gay, bisexual and transgender employees. The employer provides financial and other support for these groups so that they legally would be characterized as benefits of employment.

A group of white men asks to form an affinity group. The HR leader considers saying, "You don’t need one. You already have one; it’s called the senior leadership team," which is made up of white men but for one exception.

The emotion behind the fantasy response may be understandable, but the response is, of course, inappropriate because legal risk would accompany it. Title VII’s prohibition on gender bias knows no gender. The same is true of racial bias. Denying a benefit to employees because they are white and male is, well, discrimination. But that does not mean that the request necessarily needs to be honored.

The key for an organization is to develop upfront nondiscriminatory criteria in determining whether it will provide financial or other support for a proposed affinity group. Among the criteria an organization may consider are the following:

How will the proposed affinity group help its members achieve the company’s mission and goals?

How will the proposed affinity group increase inclusion and business development among the individuals in the group (as opposed to employees generally)?

Are other affinity groups or mechanisms already in place that serve the need addressed by the request?

Making decisions about proposed affinity groups based on the answers to these kinds of questions doesn’t eliminate all legal risks, but it does minimize them.

Let’s return to the white men at Employer ABC. If the organization’s power circle is dominated by white men, the white men seeking to form an affinity group may have an uphill battle. But would that be true for a group of entry-level employees in human resources?

There is no clear-cut answer; rather, it depends on applying legitimate nondiscriminatory factors.

If Employer ABC has an affinity group for women and not one for men, it might consider including men in a broader affinity group on gender that would focus, although not exclusively, on issues women face that men don’t.

It is not that you need men to be part of the group for legitimacy. You don’t. But men can learn from being included, and men who are enlightened about the obstacles that women often face are more likely to become mentors and sponsors for female colleagues.

In her groundbreaking book, Lean In: Women, Work and the Will to Lead (Knopf, 2013), Facebook COO Sheryl Sandberg asks how organizations can survive, let alone thrive, if they exclude half of their talent. She quotes Warren Buffett as attributing his success, in part, to competing with only half of the talent pool.

Isn’t a business going to be more successful if it doesn’t exclude half of its talent—in this case, the half that often has disproportionate power?

Sandberg specifically refers to her many male mentors and sponsors. She recognizes that men are not the enemy; explicit and implicit bias is. And men and women alike have a stake in eliminating it.

Not all champions of equal employment opportunity support affinity groups. One concern is that such groups may separate those they are designed to benefit. This legitimate concern should affect how affinity groups are structured.

Religious Group Exclusion

Your organization has myriad affinity groups but none based on religion. In response, a group of born-again Christians asks for affinity group status and funding.

You don’t check the mission statement. That’s because you have an explicit exclusion for religious groups. Is that lawful? Is it desirable?

To be clear, this is not about saying yes to a Jewish group and no to a Buddhist group. This is about saying no to all religious groups.

Federal law prohibits discrimination based on religion. If you allow groups based on gender and race but not on religion, while treating all religions the same, are you discriminating against religion?

The 7th U.S. Circuit Court of Appeals said no. To quote the court, there are "no cross-categorical" claims under Title VII. In other words, the existence of affinity groups in one category—say, gender—cannot be used as the basis for arguing that it is unlawful not to allow an affinity group in another category, such as religion. (Moranski v. General Motors, 433 F.3d 537 (7th Circuit 2005)).

But other circuits could decide differently. The 7th Circuit’s analysis has been criticized as hostile to religion. Some states could reach different conclusions as well; many states provide greater religious protections than federal law.

Moreover, religion is of vital importance to many U.S. workers. Having a blanket exclusion for religious affinity groups risks alienating people of faith. Even if it is lawful for organizations to exclude religious affinity groups, they do so at their own peril: They risk alienating too much talent.

For those reasons, religious affinity groups should be allowed. The criteria that apply to affinity groups organized around gender and race should apply to them, too.

Nonetheless, there are some requirements that employers may wish to impose on religious affinity groups, such as that the group’s purpose cannot be to proselytize other workers. Appropriate limitations, rather than blanket exclusions, are the solution.

Behind-the-Scenes Discussions

Your company has an affinity group for those who identify themselves as racially diverse. It is principally, though not exclusively, made up of black and Latino employees. Some of the group members are managers.

During conversations, a few group members allege that a manager has made racist remarks. They further note that he gives plum assignments to white employees only.

Wanting the group members to feel comfortable, the managers in the room respect the employees’ wishes and do not report what they have heard.

Later, one of the employees is let go for poor performance. He claims race discrimination and notes in his allegations that management was aware of his concerns and did nothing. Where did management learn of these concerns? In the affinity group.

Managers who participate in affinity groups may place themselves in a Catch-22. They want to encourage open dialogue, but if the dialogue includes allegations of unlawful conduct, they cannot ignore what they know.

If they know it, their knowledge is imputed to the organization. While it is not always clear what an organization’s leaders must do, they cannot do nothing when they learn of potentially unlawful conduct.

To minimize this risk, you may want to make clear that the purpose of the affinity group is not to raise individual concerns and that employees who have them should refer to the employer’s EEO policy and use its complaint procedure.

Further, managers should be careful not to make absolute assurances of confidentiality that they may not be able to honor.

Of course, stating the rules is easier than determining whether a particular comment is a complaint that must be investigated. But you can minimize the risk, even if you cannot eliminate it, by setting parameters upfront.

NLRA Hurdles

Your affinity group of older employees develops a list of proposed changes to the organization. Management listens to the employees and decides to implement some of the changes.

While this sounds like a management success story, it may violate the National Labor Relations Act (NLRA).

Section 8(a)(2) of the NLRA makes it an unfair labor practice for an employer to "dominate or interfere with the formation or administration of any labor organization or contribute financial or other support." The term "labor organization" has been interpreted broadly to include a variety of employee participation committees or groups that "deal with" an employer.

It could include affinity groups. Yes, the NLRA could make it harder to achieve equal employment opportunity, the linchpin of affinity groups.

Remember that the statute applies to union and nonunion employees alike. Employees are defined to exclude individuals who are considered supervisors and managers under the NLRA.

You could avoid any NLRA risk by limiting membership in your affinity groups to supervisors and managers. But then why have the groups at all? So, assuming you include employees, how do you manage the risk?

Typically, there is no on-off switch that determines when an affinity group becomes a labor organization at risk of unlawfully "dealing with" the employer. But there are a number of steps you can take to minimize the risk that your affinity group will be a labor organization and that your meeting with and considering its proposals will violate the NLRA as interpreted by the National Labor Relations Board.

You could make clear that the group is not authorized to offer any recommendations to management. Then you would avoid any chance of "dealing with" management. But that may diminish the affinity group’s effectiveness.

If you are going to allow the affinity group to make suggestions, you should stress that it is making suggestions only—just as any individual or group can—which management can consider or reject at its sole discretion. No bargaining sessions, please!

You absolutely should make clear that each member of the affinity group speaks for himself or herself and that the group is not representing those who share its defining attribute. In other words, the group does not perform a representative role. This is important not only for legal reasons but also for business reasons. Employees of a particular gender, race or sexual orientation are not monolithic in their perspectives, and some people may resent having others speak for them.

There are other steps you can take to minimize the legal risk, but they are beyond the scope of this article. The point for now is to be aware that the risk exists and that it should be managed.

Jonathan A. Segal is a contributing editor of HR Magazine and a partner at Duane Morris LLP in Philadelphia. Follow him on Twitter @Jonathan_HR_Law.

This articles does not constitute legal advice, pertain to specific factual situations or create an attorney-client relationship.


Is "Management Rights" An Oxymoron?

I am pleased to post my most recent blog for SHRM's We Know Next.

Follow me on Twitter at: @Jonathan__HR__Law



Is Goat Killing Leave A Reasonable Accommodation? Maybe

The law is clear employers must make reasonable accommodations with respect to religious beliefs, practices or observances of which they are aware, subject to a narrow undue hardship defense.  Easy to state but sometimes harder to apply.

For example, is goat killing leave a reasonable accommodation?  Uh, maybe!

Here’s the background. An employee’s father died.  The employee said he needed to travel to Nigeria for the funeral.  He said that he believed that if he did not perform certain rituals, his siblings would die, too.

What were the rituals?  Slaughtering 5 goats.

The employer said the time away was too long and denied the request. Employee sued.

The employer won at the trial court. But, on appeal, the case was  sent back to the trial court to see if funeral leave was a reasonable accommodation. 

The appellate court said the reference to funeral ritual was enough to put employer on notice that the funeral leave may have been for religious reasons.

Should an employer really have to ask if the funeral ritual is religious?  A bit intrusive?

What if employee wanted a month off? Would that be unreasonable? If yes, where do we draw the line?

And does slaughtering one of God’s creatures not for food or warmth but for sacrifice play any role in this?  What if the employer’s religious beliefs are that animal sacrifice is wrong?

Could we all agree ritual murdering is an undue burden?

Since that is not going to happen, if an employee asks for time off because of death, listen carefully as to why

They want time to be with loved ones?  Feel free to say No

They want time to kill goats? Say No at your peril

When we extend  the law to extreme, we trivialize its protections.

And so the court did.



Mad About Mad Men

As originally published by SHRM's "We Know Next," found here.

Mad About Mad Men

By: Jonathan A. Segal

Sexism is more than illegal. It is immoral and bad business.

There is more than a little bit of sexism in the roles portrayed in Mad Men.  So why are so many of us crazy about the show, even though we deplore the sexism that is part of it?

Of course, it is a TV show and not real life. And, the characters are not only psychologically interesting but also physically attractive.

And, there is great writing and acting.   The sex doesn’t hurt, either. I hear it sells!

But I think there may be something else going on.  But perhaps not consciously.

Today, fortunately, the stereotypic constraints for women (and men) are breaking down.   And, that is all good. But it can also be confusing for  supervisors and subordinates alike as they try to navigate life at the office.

Obviously, sexism in not entirely gone. Some men still visit strip clubs while away on business.  But only a knuckle dragger who has no place in the modern workplace would suggest that women should go along to get along.

But when roles are not clear, and the bias that exists is unconscious or covert, it creates ambiguity. With ambiguity comes anxiety.

While there is psychological complexity in Mad Men, there is not a lot of ambiguity in terms of gender roles.  And, perhaps one of the reasons we are fascinated by it is because we are seeking a workplace that’s a little less ambiguous, even though it is deeply flawed in its clarity.

Don Draper is the likeable but the licentious alpha male who pursues and gets what he wants from his workplace, economically as well as sexually. In contrast, Red is well...Red.  In addition to how she presents herself in the workplace, she makes sure that the other women "know their place" in the workplace.

All accept their gender-defined roles, except for Peggy. She will not accept the gender role assigned to her.   She is ambitious and we will see soon how far her ambition takes her.

But Peggy struggles with her own ambition.  And those in the 1960 Boys’ Club around her struggle with her ambition, too.

The ambivalence in and about Peggy still exists in our workplaces today.  Yes, it is less conspicuous and often unconscious, but we deceive ourselves if we believe it is not there.

Assertive women still face unfair “Catch-22s” every day.  Be directly assertive and you may be branded with Scarlett B.  Be more indirect and you may be seen as weak and/or underhanded.

And, many men are confused by the sea change.  How should we behave?

I recently gave a talk for executives about gender bias.  After the talk, I took the elevator down to the lobby with some of the participants.  When the door opened, no one knew what to do.  I had a “brilliant” suggestion: those closest to the opening leave first.

So we look with distaste at the sexism and all that which goes with it.  But, perhaps, we also yearn, to some degree, for greater clarity. Guess what: we can’t have it.

Stereotypes define roles. We now need to define our roles for ourselves without society unfairly assigning them to us.

The freedom is of course liberating and for the best. But it is not without some anxiety.

But, take a break from anxiety, and enjoy Mad Men this weekend.  I know I will.

The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization.




NLRB's Trojan Horse

I am pleased to post an article by Allen Smith of SHRM on "Micro Units." I am honored to have been interviewed for it.

Here's the link:





For Men and Women Who Care About Male Colleagues

We moved our October 15 event, Lean In Dialogues, to another center city location.  Easy access in and out of city. See below.

We are filling up the magnificent space very  fast. Only concern: not as many men have signed up, as of now, as we had hoped.

Smart men know that they benefit from gender equality . Smart men also would benefit in hearing what women in power may never have told them; you’ll hear it here.  We have seen many men felled because they made mistakes that could have been avoided.

If interested, please register ASAP

Women: of course, the same invite is extended to you but I had to get the attention of the men.

If interested, please e-mail Taylor that you are registering. Taylor’s email address is

We effectively have changed forum 3 times to meet demand.  We need to monitor attendance because we cannot change again.

Note the panel. True honor to facilitate.



Documentation In Health Care: Knife in the Malpractice Claim?

In the employment context, we often hear “document, document, document.”  But keep in mind that the documentation you write to employees to reflect problems with their performance or behavior later can be used against you in a medical malpractice claim.

Let’s assume you have a doctor and his level of care does not meet standard.  And, let’s further assume he should be terminated.

If you terminate him for sub-quality care, providing multiple examples, that label, and accompanying examples, may be used against you in a medical malpractice claim involving that doctor.

What if you say instead, the doctor failed to provide the optimal care we demand with only a fewer less extreme examples and making clear that they are only examples (so you can still raise others).  You can still argue that the care, while not optional, was not negligent.

Is sub-optimal as strong as sub-standard in defending an EEO claim?  Probably not.

But we need to look not only at EEO but also malpractice risks.  Almost always, potential liability in medical malpractice cases is higher than in employment cases.

This is but one many documentation errors that health care providers can make when managing employees.  With training, managers are better able to nuance the reason for termination so they can defend a wrongful discharge claim without writing what may be a smoking gun for plaintiffs’ lawyers in a malpractice claim.

Follow me on Twitter at:  Jonathan__HR__Law



In Defense Of Sheryl Sandberg

I am pleased to post my recent blog for SHRM's WeKnowNext, In Defense of Sandberg.  While Sandberg needs no defenders, I will:

DMi Presents: A Dialogue About Leaning In

In her provocative and vitally important book,
Lean In: Women, Work, and the Will to Lead, Sheryl Sandberg ends with:
"My goal is that this book is not the end of the conversation but the beginning."

We will continue the conversation with a panel composed of
successful women who are role models for women and men alike. Please save the date!

Tuesday, October 15, 2013 | 4:00 p.m. to 6:00 p.m.
Reception immediately to follow.

For details about the event, and the people scheduled to present,
as well as a link to register, Click Here.


She’s Too Sexy For Her Job

The all-male Supreme Court of Iowa re-affirmed its holding that an employer did not engage in sexual harassment when an employee was fired by her boss because he found her sexually irresistible.  He was afraid that, if she remained employed, he would not be able to control the temptation to have a sexual relationship with her in violation of his marital vows.

The Court held this was not because of her gender but because of his “feelings” specific to the employee.  But wouldn’t that same analysis apply to quid pro quo harassment?  Quid pro quo harassment occurs, among other circumstances, where an employer fires a particular employee because she or he refuses to submit to “sexual feelings” that a manager has for her or him.

In both cases, the manager’s actions are based on feelings.  In both cases, those feeling relate directly to gender.

How can it be unlawful to terminate an employee because she won’t pull down a manager’s zipper but lawful to terminate an employee because the manager is afraid he will pull down his own zipper?

Not everything unfair is unlawful.  But, in this case, I would be surprised if the unfairness were not deemed unlawful by the EEOC under federal law. 




Boys Without A Club

My most recent blog, Boys Without A Club:

Published by SHRM's WeKnowNext.

This blog does not constitute legal advice, create an attorney-client relationship or apply to specific factual situations


Jonathan Segal

Business Ally. Help clients achieve business goals and manage legal risks. Areas of focus include: gender equality; wage and hour compliance; social media; leadership training; union avoidance; performance management; and agreements

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© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.
The opinions expressed on this blog are those of the author and are not to be construed as legal advice.